In late September, another several hundred
citizens successfully transitioned through the Oregon
legal community’s rite of passage – the state bar examination.
The exam tests, or threatens to test, over 25 substantive
areas of law. Applicants for admission must stand prepared
to analyze principles fundamental to the Anglo-American
legal system, from business and family law to state
and federal constitutional law. Such subjects are tested
by the Board of Bar Examiners to ensure that each and
every attorney who will protect the essential legal
rights of Oregon citizens, is competent to do so.

However, there is an age-old, ever-evolving
and increasingly prevalent body of law that is not
tested in Oregon. The roots of these laws were planted
throughout the Northwest long, long before Meriwether
Lewis and William Clark discovered Oregon in 1806.
This code of law was so obviously prevalent in colonial
America that the founding fathers wrote the framework
for the law into the plain text of the U.S. Constitution.
Although inextricably interwoven into the fabric of
our state and federal legal systems, this area of law
is simply not tested. New Mexico recently became the
first state to test this subject on its bar exam, and
Washington is considering becoming the second. Oregon
should act quickly to follow that trend. The unique
blend of tribal, state and federal law is commonly
known as 'Indian law.'

Instructed by nearly two centuries of
U.S. Supreme Court precedent, beginning in 1832 with Worcester v. Georgia,
national and local governments have recognized Oregon
tribes as 'distinct, independent political communities,
retaining their original natural rights' in matters
of local self-government. By 1886, the Court reiterated
in U.S. v. Kagama, 118 U.S. 375, 381-82, Indians
are a 'separate people, with the power of regulating
their internal and social relations,' and in the
1959 case of Williams v. Lee, 358 U.S. 217,
220, the Court made abundantly clear that tribes possess 'the
right … to make their own laws and be ruled by them.' Over
the past decade, Oregon tribes have exercised their
inherent sovereignty to become an influential economic,
legal and political force. United with corporate America,
the tribes are now engaged in real estate development,
banking and finance, telecommunications, wholesale
and retail trade and tourism. Consider: 1) In 2002,
Oregon’s eight gaming tribes generated $370 million
in revenue, contributing $8.5 million to local government
and state non-profit groups; 2) Oregon tribes currently
employ thousands of Indian and non-Indian employees.
For example, the Confederated Tribes of Grand Ronde
employ 1,500 Oregonians, and the Cow Creek Band of
the Umqua Tribe employs 1,200; 3) Oregon tribes occupy
nearly one million acres of land in the State.

A corollary to the dramatic rise in tribal
economic development is the increased interaction of
tribes with non-Indians seeking business, employment
or recreation on the reservation. In turn, a wide array
of legal matters arise, interjecting Indian law issues
into virtually every area of law.

Indian law principles underlie every
business transaction involving Indians and their land.
Indian lands are now being developed by Fortune 500’s
most powerful companies, including Wal-Mart, AT&T,
Home Depot and Bank of America. Such partnerships are
generating billions of dollars in income and tax revenue,
as well as significant employment opportunities, during
downtrodden economic times. Indian law issues are certainly
not confined to the tribal business and employment
context. Litigation involving the adoption of an Indian
child, the probate of real property on tribal lands,
or an auto accident on a reservation potentially involve
complex jurisdictional issues. Enforcement of a judgment
in a consumer collection matter involving a tribal
member or his reservation property presents procedural
obstacles that do not exist under state law. A slip-and-fall
case arising in a tribal casino will implicate, as
a threshold issue, the unique defense of tribal sovereign
immunity. The applicability of state taxes on the sale
of goods and services to non-Indians on tribal lands
requires a detailed reading of both taxation law and
federal Indian common law. Even the development of non-Indian
owned land near reservations or waterways may implicate
tribal treaty-based rights.

The general practitioner or public lawyer
in Oregon will no doubt become involved in a case requiring
an analysis of Indian law. In the best interest of
all Oregon citizens, be they Indian or non-Indian, every lawyer
licensed by the Oregon State Bar need understand basic
Indian law. What better forum to achieve this than
through the state bar exam.

ABOUT THE AUTHORGabriel S. Galanda is an attorney with the Seattle-Portland law firm of Williams, Kastner & Gibbs. He is past- president of the Northwest Indian Bar Association, and chair of the WSBA Indian Law Section.